1
[AMOCO LOGO] Exhibit 10.25
SS#
15093
-------------------------
000 X. Xxxxx Xxxxxxxxxx,XX
Real Estate Contract
(Surplus Property)
26-884-SP9(3-94) E
THIS CONTRACT, made this 25 day of March, 1996, between Amoco Oil Company, a
Maryland corporation, with offices at 000 Xxxx Xxxxxxxx, Mail Code 1408B,
Xxxxxxx, XX 00000, hereinafter called Seller, and Wolfhoya Investments, Inc.,
whose address is 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 hereinafter called
Purchaser.
WITNESSETH:
That in consideration of the mutual covenants and agreements herein
contained, Seller hereby agrees to sell, and Purchaser hereby agrees to buy,
for the price of FOUR HUNDRED TWENTY FIVE THOUSAND AND NO/100 Dollars
($425,000.00 ), and upon the terms and conditions hereinafter set forth, the
real estate described in Attachment #1 annexed hereto and made a part hereof,
together with all improvements located thereon (the "Property", and the
personal property and equipment, if any, set forth in Xxxx of Sale labelled
Exhibit "A" annexed hereto and made a part hereof; all other trade fixtures and
equipment are excepted.
Seller hereby agrees, subject to the conditions hereinafter set forth, to
convey title to the Property to Purchaser by Special Warranty Deed, subject
to:
(1) Existing leases, easements, sidetrack and license agreements, if any,
whether of record or not.
(2) Covenants and conditions of record, if any.
(3) Taxes and special assessments against the Property, if any.
(4) Zoning laws and municipal regulations, if any; environmental laws
and regulations, if any; building line restrictions, use
restrictions and building restrictions of record, if any; and any
party wall agreements of record.
(5) Encroachments, overlaps and other matters which would be disclosed by an
accurate current survey.
(6) The Release and Right-of-Entry as hereinafter set forth.
(7) The following covenants and agreements of the Purchaser:
"The Grantee(s) herein and hereby covenant(s) and agree(s) for
Them, selves, and Their, heirs, executors and assigns, that no part of the
real estate herein conveyed shall be used by said grantee(s) heirs,
executors, grantees or assigns, for the purpose of conducting or carrying
on the business of selling, handling or dealing in gasoline, diesel fuel,
kerosene, benzol, naphtha, greases, lubricating oils, or any fuel used
for internal combustion engines, or lubricants in any form."
"The foregoing restriction shall terminate and be of no further force
and effect upon the expiration of a period of 10 years from the date
hereof."
"The foregoing covenants shall run with the land and be binding on said
Grantee(s) Their , heirs, executors, grantees and assigns, and inure to
the benefit of the Grantor herein, its successors and assigns."
It is further agreed between Seller and Purchaser that:
1. Purchaser has deposited with Seller the sum of
FIVE THOUSAND AND NO/100 TO BE INCREASED TO $21,250 AND NO/100
Dollars ($5000.00), as xxxxxxx money to be applied against the
purchase price. On the date of closing as set forth in Paragraph 13 (the
"Closing Date"), Purchaser agrees to pay to Seller the balance of the purchase
price in the amount of FOUR HUNDRED THREE THOUSAND SEVEN HUNDRED FIFTY AND
NO/100 Dollars ($403,750.00).
2
2. Seller agrees to furnish to Purchaser within thirty (30) days from the
date hereof a preliminary title report or commitment to insure title to the
Property issued by a responsible title insurance company, or the equivalent
under the Torrens Act in the event that the Property is registered under the
Torrens System, showing title in Seller subject only to the exceptions above
specified and the usual exclusions and exceptions contained in standard title
insurance policies.
3. Purchaser shall, within thirty (30) days after receiving said title report
or commitment, deliver to Seller a written statement of any objection to the
title or a written statement to the effect that the title is satisfactory. In
the event Seller does not receive Purchaser's written statement of objections
within such thirty (30) day period, it shall be conclusively presumed that
Purchaser has waived all objections to title. In the event there are
objections to the title, Seller shall be allowed thirty (30) days or until
the Closing Date, whichever is longer, to cure the same, and should such
objections be not cured or waived within such period, then Seller agrees to
refund the xxxxxxx money deposit, this agreement shall thereafter be
inoperative and void and neither Seller nor Purchaser shall have further
liability hereunder.
4. Purchaser's obligation to close hereunder shall be subject to Purchaser, at
Purchaser's sole cost and expense, inspecting or causing an inspection to be
made by qualified professionals on Purchaser's behalf of the Property and
other assets described herein, including at Purchaser's option, environmental
inspections or tests for hydrocarbons or for any toxic or hazardous
substances. Purchaser, his agents or employees may enter upon the Property for
the purpose of making such inspections and tests; provided, however, that
Purchaser shall schedule such inspections and tests with Seller, who shall
have the right to have a representative present at all times during
inspections and tests performed by Purchaser; that Purchaser shall provide to
Seller complete copies of the results of all such inspections and tests; that
the results of such tests shall be confidential and shall not be reproduced or
disclosed by Purchaser to anyone without written consent of Seller; that
Purchaser shall promptly repair any and all damages to the Property caused by
that such activities, and shall restore the property to the same condition as
before the inspections or tests to the satisfaction of Seller; that such
inspections and tests shall not be conducted in such a manner as to interfere
with business operations conducted on the Property; and that Purchaser shall
indemnify and hold Seller harmless from and against any and all claims arising
from or by reason of Purchaser's entry upon the Property. In the event such
inspections disclose conditions unsatisfactory to Purchaser in
Purchaser's sole discretion, and Purchaser so notifies Seller in
writing on or before August 17, 1996, then this Contract shall become null and
void, and Seller shall return the xxxxxxx money deposit to Purchaser. In the
event Seller does not receive Purchaser's written notice by such date, it shall
be conclusively presumed that Purchaser has satisfied or has waived this
contingency.
5. Purchaser expressly acknowledges and agrees (i) that the Property has been
used as a retail gasoline station; (ii) that Purchaser is relying on the
results of his own investigation of the physical and environmental condition
of the Property; (iii) that Purchaser is relying solely on his own judgment in
completing the purchase of the Property, and (iv) that Purchaser is acquiring
the Property "as is" with all faults on the date of conveyance, except as set
forth in this Contract. Seller makes no representations or warranties
whatsoever regarding the condition of the real estate or improvements,
including but not limited to the environmental condition of the Property and
warranties of merchantability or fitness for a particular purpose.
6. Seller agrees to remove the underground tanks and product lines now on the
Property and to backfill the tank hole(s) within thirty (30) days after the
Closing Date, subject to the availability of labor, weather conditions, and
other factors beyond Seller's control. Purchaser hereby grants to Seller the
right to enter on the Property, agrees to cooperate with Seller in the removal
of the existing tanks and lines, and hereby releases Seller from all claims of
loss of profits or interference with Purchaser's business resulting therefrom.
Purchaser hereby expressly assumes all responsibility for grading, compacting
and resurfacing the Property.
7. Purchaser acknowledges receipt of copies of the assessments, reports and/or
correspondence regarding the Property, copies of which are labelled Exhibit
'B' annexed hereto and made a part hereof. Purchaser further acknowledges that
additional assessments or diagnostic measures may be required to be performed
upon the Property to determine and to design and implement a reasonable and
cost effective plan for remediation of hydrocarbon contamination, and that
such assessments and remediation activities may be disruptive of Purchaser's
use and occupancy of the Property and may continue for an indefinite period of
time. Notwithstanding the foregoing, Purchaser desires to complete the
purchase of the Property and agrees to cooperate with Seller in the
performance of assessment and remediation activities after the Closing Date.
8. Seller agrees to perform reasonable and cost effective assessment
and remediation measures to address hydrocarbon contamination on the Property
caused by Seller prior to the Closing Date as deemed necessary or advisable by
Seller, in its sole discretion, or as Seller is required to perform by the
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY (the 'Department'), for a period of
time ending upon expiration of the petroleum restriction set forth in (7)
above, or sooner as hereinafter provided (the 'Ending Date'); provided,
however, at such sooner time as (i) no further remediation activities are
required from Seller by the Department, or (ii) any gasoline, diesel fuel,
kerosene, benzol, naphtha or any fuel used for internal combustion engine is
sold, handled or stored on the Property; or (iii) Purchaser shall materially
default in compliance with any applicable environmental law or regulation, or
shall otherwise default in the performance of any material covenant of this
Contract relating to environmental contamination, assessment or remediation,
including but not limited to Paragraph 10 hereafter, or (iv) a material spill,
leak, or other release of hydrocarbons or other contamination occurs following
the Closing Date which makes Seller's remedial work significantly more
difficult, or significantly increases the cost or extends the time to complete
the remedial work, then Seller shall thereafter have no further responsibility
to Purchaser, or to Purchaser's heirs, personal representatives, grantees,
successors and assigns, or to anyone claiming by, through or under Purchaser,
for remediation of any contamination on the Property and all indemnity
obligations of Seller shall end.
9. For the period of time commencing on the Closing Date, and ending on the
Ending Date, Seller agrees to indemnify and hold harmless Purchaser and
Purchaser's heirs, legal representatives and successors (collectively the
"Indemnified Purchaser Parties"), from and against all claims, demands,
damages, losses, judgments, penalties and liabilities which arise as a result
of any enforcement action resulting from the presence of hydrocarbon
contamination on the Property caused by Seller's use thereof prior to the
Closing Date; provided, however, that (i) Seller's indemnity shall be limited
to remediation costs actually incurred by or imposed upon Indemnified
Purchaser Parties as a result of such enforcement action, (ii) Indemnified
Purchaser Parties shall promptly notify Seller and provide to Seller copies of
all notices received by Indemnified Purchaser Parties pertaining to any such
enforcement action, and (iii) Indemnified Purchaser Parties shall incur no
costs or expenses for remediation without the prior written consent of Seller.
Page 2 - REAL ESTATE CONTRACT For Purchaser...Dated
(Surplus Property) Wolfhoya Investments, Inc., 25 March, 1996
3
10. As of the Closing Date, Purchaser hereby expressly assumes all
responsibility and liability for compliance with all environmental laws and
regulations and for any environmental assessment, inspection, monitoring and
remediation relating to or resulting from Purchaser's use of the Property.
Purchaser shall, at Seller's request, provide to Seller assurance of
compliance with all environmental laws and regulations, including but not
limited to the results of all future environmental tests, product inventory
data, tank gauging data, tank leak detection data and sampling data; shall
promptly notify Seller of all leaks, spills or releases of hydrocarbons or
other regulated substances which occur or of which Purchaser becomes aware;
and shall, at Seller's request, permit Seller to perform product tracing and
other reasonable tests and procedures during the period of any assessment or
remediation activities by Seller, it being the intent of the parties that
Purchaser shall be responsible and liable for any and all spills, leaks and
releases which occur subsequent to the Closing Date. Commencing on the Closing
Date, Purchaser agrees, collectively, and jointly and severally, for
themselves and on behalf of their agents, employees, heirs, personal
representatives, grantees, successors and assigns (collectively "Purchaser
Indemnifying Parties"), to indemnify and hold harmless Seller, its parent,
affiliates, and each of their respective agents, employees, officers,
directors, shareholders, successors and assigns (collectively the "Indemnified
Seller Parties") from and against all claims, demands, damages, losses,
liabilities, judgments, penalties, suits, actions, costs and expenses
(including consultants' and attorneys' fees) arising from the presence of
hydrocarbon or other contamination occurring after the Closing Date; provided,
however, that from and after the Ending Date, Purchaser Indemnifying Parties
shall indemnify and hold harmless the Indemnified Seller Parties from and
against all claims, demands, damages, losses, judgments, penalties, suits,
actions, costs and expenses (including consultants' and attorneys' fees)
arising from all contamination of the Property.
11. Seller reserves the right, for itself, its agents, employees, successors
and assigns, to enter upon the Property, both before and after the Closing
Date, for the purpose of (i) engaging in environmental assessment, inspection,
monitoring and remediation, including but not limited to the installation of
such facilities and the conduct of such activities as deemed necessary or
advisable by Seller, in its sole discretion, or as are required by
governmental authorities having jurisdiction, for a period of time required to
comply with any applicable environmental laws or regulations affecting the
Property, and (ii) removing from the Property any property and equipment not
sold hereunder. Seller shall not be liable for any damages to Purchaser,
direct or indirect, resulting from contamination of the Property existing on
the Closing Date or for any interruption or interference with any business or
activities being conducted on the Property, or loss of opportunity, or any
other loss, damage, cost or expense of any kind whatsoever, caused by or
resulting from the condition of the Property or the performance of any
activities authorized herein; provided, however, Seller shall use reasonable
efforts to minimize such interruption or interference. Purchaser agrees to
cooperate fully with Seller in the performance of the activities authorized
herein so as to minimize the time and expense to Seller, including the
granting of access to on-site utilities (e.g., electricity, sewer, and water),
if required for such activities, and further agrees that, during the period of
any assessment or remediation activities by Seller, (i) no construction or
improvements shall be made upon the Property which would impede or restrict
access to monitoring xxxxx, remediation or monitoring equipment, or to the
hydrocarbon plume, or which would modify or affect the size, location or
nature of the plume without the prior written consent of Seller, which consent
shall not be unreasonably withheld; and (ii) no gasoline, diesel fuel or other
motor fuels shall be sold, handled or stored on the Property.
12. As further consideration without which Seller would not have entered
into this Contract, Purchaser agrees to execute and deliver to Seller at
closing the following documents: (i) the Xxxx of Sale in the form set forth
in Exhibit "A" annexed hereto and made a part hereof, and (ii) the Release
and Right-of-Entry in the form set forth in Exhibit "C" attached hereto and
made a part hereof, each of said documents to be effective as of the Closing
Date.
13. The Closing Date shall be fifteen (15) days after all conditions
have been satisfied or waived, but not later than August 27, 1996.
Closing shall be effected through escrow with the title insurance company
acting as escrow agent for both parties. Seller shall deliver to the escrow
agent its Special Warranty Deed, any other documents required hereunder, and
all customary documents required by the title company not inconsistent with
this Contract. Purchaser shall deliver to the escrow agent the balance of the
purchase price in cash or certified funds, the Release and Right-of-Entry, any
other documents required hereunder, and all customary documents required by the
title company not inconsistent with this Contract. The escrow agent shall
record the Special Warranty Deed and the Release and Right-of-Entry; shall
deliver to Seller its Settlement Statement, a cashier's check for the purchase
price less Seller's expenses, and the recorded Release and Right-of-Entry; and
shall deliver to Purchaser its Settlement Statement, the recorded Special
Warranty Deed and the owner's title insurance policy. Seller shall pay the fees
for recording the Release and Right-of-Entry and the title insurance premium.
Purchaser shall pay the fees for recording the Special Warranty Deed. Seller
and Purchaser each agree to pay 50% of the escrow fee.
14. Rents and other current charges, if any, shall be adjusted pro rata as of
date of delivery of deed. General taxes for the year of closing shall be
prorated from January 1st to date of delivery of deed. If the amount of such
taxes is not then ascertainable, prorating shall be on the basis of the amount
of the most recent ascertainable taxes. Purchaser agrees to pay any and all
Federal, State, and local real estate transfer taxes and documentary stamp
taxes applicable to this transaction, and a present or future retailer's
occupation tax, sales, use, excise or similar tax applicable to the sale of
goods, equipment or other personal property covered by this Contract.
15. If, after the date of execution of this Contract and prior to closing, a
casualty loss occurs that results in damage or destruction such that greater
than five (5) percent of the value of improvements and equipment are damaged
or destroyed, then either party shall have the right to terminate this
Contract by notice to the other, in which case this Contract shall be deemed
null and void, the xxxxxxx money shall be returned to Purchaser, and neither
Seller nor Purchaser shall have any further liability under this Contract.
Seller shall have no duty whatsoever to restore any improvements or equipment
on the Property.
16. Seller and Purchaser each represent and warrant to the other that no
brokers or finders have been involved in this transaction, except
HIFFMAN XXXXXXX ASSOCIATES & XXXXXXXX XXXXX XXXX & ("Realtor"), and that no
commissions or fees are due to any broker or to any other party with regard to
this transaction, except as set forth in the Commission Agreement labelled
Exhibit "D" annexed hereto and made a part hereof. Seller and Purchaser each
agree to indemnify, defend and hold the other harmless from any claims, loss,
damage, costs and expense arising from any breach hereof by the indemnifying
party.
Page 3 - REAL ESTATE CONTRACT For Purchaser...Dated
(Surplus Property) Wolfhoya Investments, Inc.- 25 March 1996
4
17. (a) In the event of default hereunder by Purchaser prior to closing,
Seller's remedies shall include, in addition to specific performance and other
remedies available at law or in equity, terminating this Contract upon written
notice to Purchaser, in which event Seller may retain the xxxxxxx money at its
option as liquidated damages, and Seller or Purchaser shall thereafter have no
further claim against or liability to the other and this Contract shall be
inoperative and void.
(b) In the event of default hereunder by Seller prior to closing,
Purchaser's remedies shall include, in addition to specific performance and
other remedies available at law or in equity, terminating this Contract upon
written notice to Seller, in which event Seller expressly agrees to refund
to Purchaser the xxxxxxx money deposit, and Seller or Purchaser shall
thereafter have no further claim or liability against the other and this
Contract shall be inoperative and void.
18. All notices required or sent hereunder shall be in writing and delivered
in person, by messenger or other express delivery service, or by U.S. Mail
Certified, Return Receipt Requested, to the address of the other party as set
forth in the first paragraph of this Contract, or to such other address as the
parties may from time to time designate. A copy of any notice to Seller shall
also be sent to Amoco Oil Company 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: West Zone Real Estate. Each such notice shall be deemed
served and effective on the date of delivery or refusal, if delivered
personally, on the date of the delivery receipt, if delivered by messenger or
express service, or the date of mailing shown on the certified mail receipt,
if delivered by certified mail.
19. Purchaser acknowledges that Seller has made no representations or
warranties to Purchaser regarding (i) the economic viability, profitability
or business potential of the Property; (ii) the condition or suitability of
any assets sold to Purchaser for operating Purchaser's business or for any
other use; or (iii) the environmental condition or status of the Property.
20. This Contract and Exhibits "A" through "D" annexed hereto contain the
entire understanding and agreement between the parties hereto relative
to the subject matter hereof. No representations or statements, other than
those expressly set forth herein, were relied upon by the parties in entering
into this Contract. No modification, waiver of, addition to, or deletion from
the terms of this Contract shall be effective unless reduced to writing and
signed by Seller and Purchaser, each of whom expressly waives, releases and
forever forswears any right under ILLINOIS law which permits a contract, by its
terms amendable only in writing, to be orally amended.
21. Any covenant or provision hereof which by its nature requires observance
or performance after the Closing Date shall survive delivery of the deed and
shall continue in full force and effect.
22. The provisions hereof shall inure to the benefit of and bind the parties
hereto, their respective heirs, personal representatives, successors and
assigns. Purchaser shall not assign his rights under this Contract without
the prior written approval of Seller.
23. It is expressly understood and agreed that this Contract shall not be
binding on Seller unless and until it is executed on behalf of Seller by an
authorized representative and a signed copy thereof is delivered to
Purchaser.
In Witness Whereof, the parties hereto have duly signed these presents
the day and year first above written.
Witness: AMOCO OIL COMPANY, Seller
------------------------------ By /s/ Xxxxxx X. Xxxxxxx
----------------------------------
XXXXXX X. XXXXXXX,
REAL ESTATE MANAGER
Taxpayer I.D. No. 00-0000000
------------------
Witness: PURCHASER
/s/ Wolfhoya Investments, Inc.
----------------------------- -------------------------------------
/s/ X.X. Xxxx, Vice President
----------------------------- -------------------------------------
X.X. XXXX, VICE PRESIDENT
Taxpayer I.D. No. 00-0000000
-------------------
Page 4 - REAL ESTATE CONTRACT For Purchaser....Dated
(Surplus Property) Wolffhoya Investments, Inc. - 25 March 1996
5
SS #15093
000 X. Xxxxx & Xxxxxxx
Xxxxxxxxxx, XX
ATTACHMENT #1
Property Description:
Lots 7 and 8 in Block 2 in "Village of Barrington", in the East
one-half of the Northwest quarter of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 0, Xxxx of the Third Principal Meridian, in Xxxx County,
Illinois.
6
SS #15093
000 X. Xxxxx & Xxxxxxx
Xxxxxxxxxx, XX
ADDENDUM TO
REAL ESTATE CONTRACT
THIS ADDENDUM, attached to and made a part of that certain Real Estate
Contract dated the 25th day of March, 1996,is made and given as further
consideration for Seller's agreement to sell and Purchaser's agreement to buy
the Property.
WITNESSETH: It is further agreed as follows:
1. SURVEY ALLOWANCE. Seller shall give Purchaser a credit at closing up to the
amount of $2,000 upon presentation of an invoice for a current survey of the
property. Purchaser shall be totally responsible for obtaining the survey.
2. CONTINGENCIES.
APPROVALS. This sales agreement is wholly subject to Purchaser
securing State, FDIC and Federal Reserve Banking approvals for a
financial institution on the property within 145 days hereof. In the
event Purchaser is unable to secure such approvals within said 145
days, then the xxxxxxx money deposit made by Purchaser shall be
refunded by Seller and this agreement shall be declared null and void.
SPECIAL ASSESSMENTS. This sales ageement is contingent upon
Purchaser's verification that there are no special assessments against
the property and that none are planned. In the event Purchaser is
unable to satisfy this contingency then this agreement shall become
null and void at Purchaser's election and any and all xxxxxxx money
deposited by Purchaser shall be refunded by Seller.
IN WITNESS WHEREOF, the parties hereto have duly signed these presents all this
25th day of March, 1996.
WITNESS: AMOCO OIL COMPANY - Seller
By: /s/ Xxxxxx Xxxxxxx
---------------------------------- ------------------------------------
Xxxxxx Xxxxxxx, Real Estate Manager
WITNESS: WOLFHOYA INVESTMENTS, INC. - Purchaser
By: /s/ Xxxxxx X. Xxxx
---------------------------------- ------------------------------------
Xxxxxx X. Xxxx, Vice Xxxxxxxxx
0
XX # 00000
------------------------------
000 X. Xxxxx, Xxxxxxxxxx, XX
------------------------------
AMENDMENT OF REAL ESTATE CONTRACT
THIS AMENDMENT is hereby made a part of the annexed Real Estate
Contract, dated the 25th day of March, 1996, between AMOCO OIL COMPANY, a
Maryland corporation, therein and herein called Seller, and Wolfhoya
Investments, Inc., therein and herein called Purchaser (the "Contract").
WITNESSETH, that the Contract is further subject to the following
terms and conditions, to-wit:
1. Paragraph 8 of the Contract is hereby amended by adding
thereto the following:
A. For the purpose of this Paragraph 8, a material
spill, leak or other release of hydrocarbons or other contamination
which occurs at the Property following closing (a "subsequent
release") and is not caused by Seller shall be designated as either a
"Superseding Release" or a "Proportionate Release."
B. A "Superseding Release" shall mean a spill, leak or
other release of hydrocarbons or other contamination occurring after
Closing at the Property, which is not due to any negligence or other
wrongful conduct by Seller in performing remediation, and which
renders superfluous any continuing corrective action or remediation
efforts by Seller. For the purpose of this Paragraph 8, the
corrective action or remediation efforts of Seller shall be deemed to
have been rendered superfluous in circumstances which include, but are
not limited to the following: (i) if a subsequent release
significantly increases the cost to Seller or significantly extends
the time required to perform the corrective action or remediation
work, or (ii) if Seller has attained levels of residual contamination
approved by or meeting the criteria of the governmental agency having
jurisdiction for a "monitor only" course of remedial action before the
occurrence of a subsequent release. Upon the occurrence of a
Superseding Release, (i) Seller shall have no further responsibility
to Purchaser for corrective action or remediation of any contamination
of property impacted by the Superseding Release; (ii) any indemnity
obligation of Seller with regard to contamination of property impacted
by the Superseding Release shall end; and (iii) Purchaser Indemnifying
Parties shall thereafter indemnify and hold Indemnified Seller Parties
harmless from and against all claims, demands, damages, losses,
liabilities, judgments, penalties, suits, actions, cost and expenses
(including consultants' and attorneys' fees) from all contamination or
alleged contamination of the Property.
C. A "Proportionate Release" shall mean any spill, leak
or release of hydrocarbons or other contamination occurring after
Closing at the Property, which is not due to any negligence or other
wrongful conduct by Seller in performing remediation,
8
and which is not a Superseding Release. For the purpose of this
Paragraph 8, a subsequent release shall be a Proportionate Release in
circumstances which include, but are not limited to the following:
(i) if such subsequent release is in a location physically removed
from any area in which Seller is engaged in remediation work and such
subsequent release does not significantly increase the quantity or
extent of the existing contamination to which Seller's remediation
work is directed, or (ii) if such subsequent release does not
significantly increase the cost to Seller or significantly extend the
time required to perform the corrective action or remediation work.
Upon the occurrence of a Proportionate Release, (i) Purchaser shall be
solely responsible for all assessment, corrective action, remediation
and monitoring activities necessary to address such subsequent release
in accordance with the requirements of the governmental agencies
having jurisdiction, (ii) Seller shall remain responsible for
continuing corrective action and remediation work to address
contamination caused by Seller provided, however, that Seller's
continuing obligations shall be limited to the cost to attain levels
of contamination necessary to obtain approval of the governmental
agency having jurisdiction for a "monitor only" course of remedial
action, absent such subsequent release; and (iii) the parties agree to
cooperate with each other and to coordinate corrective action and
remediation work in order to minimize the time and expense to both
parties in performing such activities.
D. In the event the parties cannot determine and agree
whether a material default by Purchaser has occurred under Paragraph
8(i) or whether a subsequent release is a Superseding Release or a
Proportionate Release, or in the event the parties cannot determine
and agree how to split or coordinate corrective action or remediation
work and/or costs, or otherwise resolve differences involving a
Proportionate Release, then such matters shall be submitted to
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association by a single arbitrator appointed in
accordance with such rules. The decision of the arbitrator shall be
final, and judgment may be entered upon it in any court having
jurisdiction.
2. Paragraph 9 of the Contract is hereby amended by adding
thereto the following:
In addition, for the period of time commencing on the Closing
Date and ending 10 years thereafter, Seller shall indemnify
and hold harmless the Indemnified Purchaser Parties against
claims and demands made by a private third party unrelated to
Purchaser arising solely out of or pertaining solely to the
presence of hydrocarbon contamination originating on the
Property caused by Seller's use thereof prior to the Closing
Date which has emanated from the Property and purportedly
caused damage to the claiming third party ("Third Party
Claims"); provided, however, Seller's indemnity regarding such
Third Party Claims shall be limited as follows:
A. Indemnified Purchaser Parties shall provide to Seller
written notice of such Third Party Claim no later than 60 days after
Indemnified Purchaser Parties receive
9
notice of the claim or demand made by the third party on an
Indemnified Purchaser Party. Failure to provide such notice shall
terminate any obligation of Seller to provide indemnity to the
Indemnified Purchaser Parties with regard to such claim.
B. At the time that notice is provided to Seller as set
forth in Subparagraph 2(A), Indemnified Purchaser Parties shall tender
defense of such claim to Seller and shall provide Seller with copies
of all documents and information in the possession of Indemnified
Purchaser Parties that pertain or relate to such claim; provided,
however, Indemnified Purchaser Parties at their sole cost and expense
shall have the right to employ their own counsel in defense of any
such claim. Indemnified Purchaser Parties shall continue to cooperate
with Seller in the defense of such claim until such time as the claim
is resolved or otherwise disposed of to the satisfaction of Seller.
C. Indemnified Purchaser Parties shall incur no costs or
expenses in relation to such Third Party Claim without the prior
written consent of Seller, and any costs or expenses so incurred
without such prior written consent shall not be covered by Seller's
indemnity.
3. Paragraph 10 of the Contract is hereby amended by adding
thereto the following:
Nothing in this Paragraph 10 shall be construed to obligate
Purchaser Indemnifying Parties to indemnify Indemnified Seller
Parties against Third Party Claims.
4. In the event of any inconsistency between the Contract and
this Amendment, this Amendment shall prevail and control.
IN WITNESS WHEREOF, the parties hereto have duly signed these presents the day
and year first above written.
WITNESS: AMOCO OIL COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxx,
Real Estate Manager
WITNESS: PURCHASER
Wolfhoya Investments, Inc.
------------------------------- --------------------------------------
/s/ X.X. Xxxx
------------------------------- --------------------------------------
X.X. Xxxx, Vice President
10
EXHIBIT "A"
SS #
15093
--------------------
000 X. Xxxxx, Xxxxxxxxxx, XX
----------------------------
Xxxx of Sale
(Excludes Tanks)
26-885-ET (3-94)E
Know all men by these presents: That Amoco Oil Company, a Maryland corporation
hereinafter called "Seller," for and in consideration of the sum of Ten Dollars
and other valuable consideration ($10.00), the receipt and sufficiency whereof
being hereby acknowledged, does hereby bargain, sell, transfer, set over, and
convey to
Wolfhoya Investments Inc. ,
-------------------------------------------------------------------------------
hereinafter called "Buyer," all of the following described items of personal
property:
All trade fixtures and equipment owned by Seller and located on the premises
legally described as set forth in Attachment #1 attached hereto on the date
hereof, but expressly excluding: all underground storage tanks, pipes and
lines, Seller's corporate identification and "image" material (including but
not limited to all signs and pedestals), all dispensers and associated
above-ground electronics, point of sale equipment, credit processing equipment,
observation xxxxx and remediation equipment.
Seller covenants and agrees with Buyer that it is the lawful owner of said
property and has good right and title to sell and convey the same to Buyer.
It is expressly understood that this sale is on an "as is" basis and that
Seller does not warrant the fitness or condition of said items of property for
any purpose whatsoever.
If this sale includes any equipment previously used for storage, handling or
dispensing of gasoline or other inflammable liquids, Buyer hereby acknowledges
that Seller has so informed Buyer and that Buyer understands that said
equipment may contain residuals of gasoline or other liquids which are
inflammable, toxic and explosive and that said gasoline or other inflammable
liquids may be hazardous or poisonous.
Buyer expressly assumes, as of the date of this sale, all risk of loss, damage,
or injury by reason of the aforesaid exposures and otherwise, and Buyer
expressly releases Seller from all claims of every kind or nature arising by
reason of, or in connection with, the ownership, possession, handling, or use
of said property.
11
Buyer agrees to defend, indemnify and save harmless Seller from and against any
claims, demands, causes of action, losses, damages, costs or expenses of any
kind whatsoever (including without limitation, attorneys' fees), by any person
arising from or in any way connected with the ownership, possession, handling
or use of the property subject to this Xxxx of Sale, including claims for which
Seller is held strictly liable and/or claims for which Seller is held partly or
wholly at fault.
If Buyer enters premises under Seller's control to remove any property sold
hereby, Buyer assumes and agrees, in consideration of the foregoing sale, to
indemnify and save harmless Seller from and against any claims, demands, causes
of action, losses, damages, costs or expenses of any kind whatsoever (including
without limitation attorneys' fees), by any person arising from or in any way
connected with removal of said property.
To have and to hold unto buyer its personal representatives, successors, and
assigns.
In Witness Whereof, the parties hereto have executed this instrument on this
the ______ day of ________________, 19_____.
Witness: Amoco Oil Company
By
---------------------------------- ------------------------------------
Witness: Buyer
---------------------------------- --------------------------------------
---------------------------------- --------------------------------------
12
SS#15093
000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX
EXHIBIT "B"
Environmental assessments, reports, correspondence:
1. Annual Ground Water Monitoring Report dated January 31, 1996, prepared
by Delta Environmental Consultants, Inc., and submitted to Illinois
Environmental Protection Agency by letter dated February 2, 1996, from
Xxxx Xxxx Remediation Coordinator of Amoco Oil Company
2. Environmental Status Report dated December 9, 1994, prepared by Ecova
Corporation and submitted to Xxxxxxxx Steel of Hiffman Xxxxxxx &
Associates Inc.
3. Report of Findings dated November 11, 1994, prepared by Environmental
Services of America, Inc., and submitted to Amoco Oil Company
remediation Services Division, and submitted to Illinois Environmental
Protection Agency by letter dated August 18, 1994, from W.E. Xxxxx of
Amoco Oil Company
4. Final Report of Findings for the Tank Removal Assessment dated August
11, 1994, prepared by Earth Science Technologies, Inc., and submitted
to Amoco Oil Company
4. Expanded Site Investigation dated June 2, 1992, prepared by Earth
Science Technologies of Illinois, Inc., and submitted to Amoco Oil
Company Remediation Services Division by letter dated June 2, 1992,
and submitted to Illinois Environmental Protection Agency by letter
dated June 16, 1992, from Xxxxx Xxxxxx, Project Engineer for Amoco Oil
Company. Letter Report of Findings dated June 15, 1992, prepared by
Earth Science Technologies of Illinois, Inc., and submitted to Amoco
Oil Company Remediation Services Division.
5. Letter Report of Findings Expanded Investigation dated June 2, 1992,
prepared by Earth Science Technologies of Illinois, Inc., and
submitted to Amoco Oil Company Remediation Services Division by letter
dated June 2, 1992
6. Ground Water Quality Assessment dated October, 3 1991, prepared by
Earth Science Technologies of Illinois, Inc., and submitted to Amoco
Oil Company by letter dated February 13, 1992, from Xxx X. Xxxxxxxx,
Senior Hydrogeologist of Earth Science Technologies of Illinois, Inc.
7. Ground Water Quality Assessment dated October 3, 1991, prepared by
Earth Science Technologies of Illinois, Inc., and prepared for Xxxx
Xxxx of Amoco Oil Company
13
page 2 of 2
SS#15093
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX
8. Preliminary Contamination Assessment Report dated January 18, 1990,
prepared by Law Environmental, Inc., and submitted to Illinois
Environmental Protection Agency by letter dated January 18, 1990
Receipt of attached copies acknowledged:
Purchaser(s): Wolfhoya Investments, Inc.
/s/ X.X. Xxxx 2/28/96
---------------------------------------------
Wolfhoya Investments, Inc.
Its: Vice-President
-----------------------------------------
14
EXHIBIT "C"
SS #
15093
--------------------
000 X. Xxxxx, Xxxxxxxxxx, XX
----------------------------
RELEASE AND RIGHT-OF-ENTRY
26-884-RRE (3-94) E
KNOW ALL MEN BY THESE PRESENTS THAT:
WHEREAS, AMOCO OIL COMPANY, a Maryland corporation ("Seller"), with offices at
000 Xxxx Xxxxxxxx, Mail Code 1408B, Xxxxxxx, XX 00000, and Wolfhoya
Investments, Inc. ("Purchaser"), whose address is 0000 Xxxxxxxxxxx Xxxxx,
Xxxxxxxx, XX 00000, entered into a Real Estate Sales Contract and Addendum to
Real Estate Sale Contract dated March 25, 1996, (the "Contract"), covering
certain real estate and the improvements thereon described as set forth in
Attachment #1 annexed hereto and made a part hereof (the "Property");
AND WHEREAS, Seller has agreed to sell and assign and Purchaser has agreed to
purchase and accept the Property "as is" in its present condition without any
representations or warranties regarding its fitness for any purpose;
AND WHEREAS, Seller has provided to Purchaser a copy of the environmental
assessment performed by or at the request of Seller, as set forth in the
Contract;
AND WHEREAS, Seller has further provided to Purchaser access to and the
opportunity to inspect the Property and to perform such soil, groundwater or
other tests upon the Property as Purchaser deemed necessary or appropriate;
AND WHEREAS, Seller has agreed to perform certain environmental assessment,
monitoring and remediation measures pursuant to the Contract to address
hydrocarbon contamination, if any, of the Property resulting from Seller's use
prior to the date of transfer of title, and Purchaser has agreed to assume all
responsibility and liability for any and all hydrocarbons or other contaminants
or regulated substances which occur after the date of transfer of title;
AND WHEREAS, Purchaser and Seller desire to provide a continuing right of
access to the Property to allow Seller to perform assessment, monitoring and
remediation measures after conveyance of the Property;
NOW, THEREFORE, in consideration of the mutual covenants of the parties herein
and as set forth in the Contract, the terms of which are by this reference
incorporated in full herein:
15
1. For the period of time ending upon the expiration of the petroleum
restriction set forth in the deed from Seller to Purchaser, or at such sooner
time as is (i) no further remediation activities are required from Seller by
the Illinois Environmental Protection Agency (the "Department"); or (ii) any
gasoline, diesel fuel, kerosene, benzol, naphtha or any fuel used for internal
combustion engines is sold, handled or stored on the Property; or (iii)
Purchaser shall materially default in compliance with any applicable
environmental laws or regulations, or shall otherwise default in the
performance of any material covenant in the Contract relating to environmental
contamination, assessment or remediation; or (iv) a material spill, leak or
other release of hydrocarbons or other contamination occurs following the date
of transfer of title which makes Seller's remedial work significantly more
difficult, or significantly increases the cost or extends the time to complete
the remedial work (the "Ending Date"), Seller agrees to indemnify and hold
harmless Purchaser and Purchaser's heirs, legal representatives and successors
(collectively the "Indemnified Purchaser Parties"), from and against all
claims, demands, damages, losses, judgments, penalties and liabilities which
arise as a result of any enforcement action arising from the presence of
hydrocarbon contamination on the Property caused by Seller's use thereof prior
to the date of transfer of title; provided, however, that (i) Seller's
indemnity shall be limited to remediation costs actually incurred by or imposed
upon Indemnified Purchaser Parties as a result of such enforcement action, (ii)
Indemnified Purchaser Parties shall promptly notify Seller and provide to
Seller copies of all notices received by Indemnified Purchaser Parties
pertaining to any such enforcement action, and (iii) Indemnified Purchaser
Parties shall incur no costs or expenses for remediation without the prior
written consent of Seller.
2. Pursuant to the Contract, as of the date of transfer of title,
Purchaser expressly (i) assumed all responsibility and liability for compliance
with all environmental laws and regulations and for any environmental
assessment, inspection, monitoring and remediation relating to or resulting
form Purchaser's use of the Property; (ii) agreed at Seller's request, to
provide to Seller assurance of compliance with all environmental laws and
regulations, including but not limited to the results of all future
environmental tests, product inventory data, tank gauging data, tank leak
detection data and sampling data; (iii) agreed to promptly notify Seller of all
leaks, spills or releases of hydrocarbons or other regulated substances which
occur or of which Purchaser becomes aware, and (iv) agreed to permit Seller to
perform product tracing and other reasonable tests and procedures during the
period of any assessment or remediation activities by Seller, it being the
intent of the parties that Purchaser shall be responsible and liable for any
and all releases which occur subsequent to the date of transfer of title.
Commencing on the date of transfer of title, the Purchaser, for themselves and
on behalf of their agents, employee, heirs, personal representatives, grantees,
successors and assigns (collectively the "Purchaser Indemnifying Parties) agree
to indemnify and hold harmless Seller, its parent, affiliates and each of their
respective agents, employees, officers, directors, shareholders, successor and
assigns (collectively the "Indemnified Seller Parties) from and against all
claims, demands, damages, losses, liabilities, judgments, penalties, suits,
actions, costs and expenses (including consultants' and attorneys' fees)
arising from the presence of hydrocarbon or other contamination occurring after
the Closing Date; provided, however, that from and after the Ending Date, the
Purchaser Indemnifying Parties shall indemnify and hold harmless Indemnified
16
Seller Parties from and against all claims, demands, damages, losses,
judgments, penalties, suits, actions, costs and expenses (including
consultants' and attorneys' fees) arising from all contamination of the
Property.
3. Purchaser, collectively, and jointly and severally, for themselves and
on behalf of Purchaser Indemnifying Parties, and all persons claiming by,
through or under Purchaser, hereby release and forever discharge Indemnified
Seller Parties from all claims, demands, losses, liabilities, judgments,
penalties, suits, actions, costs and expenses whatsoever, that may now exist or
hereafter accrue with respect to contamination of the Property existing at the
time of transfer of title or occurring after the date of transfer of title, but
not, except as hereinafter set forth, Seller's obligation to remediate
hydrocarbon contamination of the Property resulting from Seller's use of the
Property prior to transfer of title; and further covenant and agree to forever
refrain and desist from instituting or asserting against the Indemnified Seller
Parties, any claim, demand, action or suit whatsoever, either directly or
indirectly, arising or resulting from contamination or alleged contamination of
the soil or groundwater of the Property, or from the environmental condition of
the Property, except to enforce the remediation provisions of the Contract.
4. Purchaser hereby grants to Seller, its agents, employees, successors
and assigns, the irrevocable right to enter upon the Property, from and after
the date of transfer of title, for the purpose of (i) engaging in environmental
assessments, inspection and remediation, including but not limited to the
installation of such facilities and the conduct of such activities as deemed
necessary or advisable by Seller, in its sole discretion, or as are required by
governmental authorities having jurisdiction, for a period of time required to
comply with any applicable environmental law or regulation affecting the
Property and (ii) removing from the Property any property and equipment not
sold pursuant to the Contract. Seller shall not be liable for any damages to
the Purchaser, direct or indirect, resulting from contamination of the Property
existing on the date of transfer of title, or for any interruption or
interference with any business or activities being conducted on the Property,
or loss of opportunity, or any other loss, damage, costs or expense of any kind
whatsoever, caused by or resulting from the condition of the Property or the
performance of any activities authorized herein; provided, however, Seller
shall use reasonable efforts to minimize such interruption or interference.
Purchaser agrees to cooperate fully with Seller in the performance of the
activities authorized herein so as to minimize the time and expense to Seller,
including the grant of access to on-site utilities (e.g., electricity, sewer,
and water), if required for such activities; and further agrees that, during
the period of any assessment or remediation activities by Seller (i) no
construction or improvements shall be permitted on the Property which would
impede or restrict access to monitoring xxxxx, remediation or monitoring
equipment, or to the hydrocarbon plume, or which would modify or affect the
size, location or nature of the hydrocarbon plume, without the prior written
consent of Seller, which consent shall not be unreasonably withheld; and (ii)
no gasoline fuel or other motor fuels shall be sold, handled or stored on the
Property.
5. Purchaser warrants that no promise or inducement has been offered
except as set forth herein; that this Release and Right-of-Entry is executed by
Purchaser without reliance upon any
17
statement or representation by Seller, its agents or employees, concerning the
measure or extent of any contamination or the legal liability therefor; that
Purchaser is of legal age, legally competent to execute this Release and
Right-of-Entry and accepts full responsibility therefor; that this Release and
Right-of-Entry contains the entire agreement between Purchaser and Seller with
respect to this matter; and that the terms of this Release and Right-of-Entry
are contractual and not merely recital.
THIS RELEASE AND RIGHT-OF-ENTRY, and each of the covenants herein contained
shall run with the land and be binding upon the grantees, assigns and other
successors in title or interest of Purchaser.
SIGNED AND SEALED this ___________ day of _____________________, 19____.
WITNESS: AMOCO OIL COMPANY
_______________________________ By____________________________________
WITNESS: P U R C H A S E R - W O L F H O Y A
INVESTMENTS, INC.
_______________________________ By____________________________________
_______________________________ ______________________________________
Page 2 - Release and Right-of-Entry For Purchaser
(Exhibit "C") Wolfhoya Investments, Inc.
18
STATE OF ILLINOIS )
)SS
COUNTY OF XXXX )
Be it remembered that on this __________ day of __________________, 19_____,
before me, personally appeared ______________________________ who is personally
known to me to be the ________________________________ of Amoco Oil Company, a
Maryland corporation, and the same person who executed the foregoing
instrument, and they duly acknowledged the execution of the same for and on
behalf of and as the act and deed of said corporation.
In witness whereof, I have hereunto set my hand and fixed my seal the day and
year above written.
_______________________________________
My commission expires on _________________________, 19___.
STATE OF )
)SS
COUNTY OF )
On this day of _____________________, in the year 19____, before me, a Notary
Public in and for said State, personally appeared
__________________________________ personally known to me to be the persons
whose names are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacity, and that by their
signature on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
Witness my hand and official seal.
_______________________________________
My commission expires on _______________________ 19____.
Page 3 - Release and Right-of-Entry For Purchaser
(Exhibit "C") Wolfhoya Investments, Inc.
19
SS #15093
000 X. Xxxxx & Xxxxxxx
Xxxxxxxxxx, XX
ADDENDUM TO
REAL ESTATE CONTRACT
THIS ADDENDUM, attached to and made a part of that certain Real Estate
Contract dated the 25th day of March, 1996, is made and given as further
consideration for Seller's agreement to sell and Purchaser's agreement to buy
the Property.
WITNESSETH: It is further agreed as follows:
[1. MODIFICATION OF RIDER TO REAL ESTATE CONTRACT. The parties hereby
agree that paragraph 1) concerning an attorney's approval, and paragraph 2)
concerning clarification of environmental issues, in the Rider to the Real
Estate Contract dated 1-8-96 are hereby deleted and shall be of no further
force or effect.]
2. SURVEY ALLOWANCE. Seller shall give purchaser a credit at closing up
to the amount of $2,000 upon presentation of an invoice for a current survey of
the property. Purchaser shall be totally responsible for obtaining the survey.
IN WITNESS WHEREOF, the parties hereto have duly signed these presents all this
25th day of March, 1996.
WITNESS: AMOCO OIL COMPANY - Seller
/s/ Xxxxxx X. Xxxxxxx
------------------------------- ----------------------------------------
Xxxxxx X. Xxxxxxx
WITNESS: Wolfhoya Investments, Inc. - Purchaser
By/s/ Xxxxxx X. Xxxx
------------------------------- --------------------------------------
Xxxxxx X. Xxxx , Vice President
Language indicated as being shown by strike out in the typeset document is
enclosed in brackets "[" and "]" in the electronic format.
20
AMOCO
15093
000 X.Xxxxx Xxxxxxxxxx, XX
Real Estate Contract (Surplus Property)
26-884-SP (3-94) E
THIS CONTRACT, made this 25th day of March 1996 between Amoco Oil Company, a
Maryland corporation, with offices at 000 Xxxx Xxxxxxxx, Mail Code 1408B,
Xxxxxxx, XX 00000 hereinafter called Seller, and Wolfhoya Investments, Inc.,
whose address is 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 hereinafter called
Purchaser.
WITNESSETH:
That in consideration of the mutual covenants and agreements herein contained,
Seller hereby agrees to sell, and Purchaser hereby agrees to buy, for the price
of FOUR HUNDRED TWENTY-FIVE THOUSAND AND NO/100 Dollars ($425,000.00), and upon
the terms and conditions hereinafter set forth, the real estate described in
Attachment #1 annexed hereto and made a part hereof, together with all
improvements located thereon (the "Property"), and the personal property and
equipment, if any, set forth in Xxxx of Sale labeled Exhibit "A" annexed hereto
and made a part hereof; all other trade fixtures and equipment are excepted.
Seller hereby agrees, subject to the conditions hereinafter set forth, to
convey title to the Property to Purchaser by Special Warranty Deed, subject to:
(1) Existing leases, easements, sidetrack and license agreements, if any,
whether of record or not.
(2) Covenants and conditions of record, if any.
(3) Taxes and special assessments against the Property, if any.
(4) Zoning laws and municipal regulations, if any; environmental laws and
regulations, if any; building line restrictions, use restrictions and
building restrictions of record, if any; and any party wall agreements
of record.
(5) Encroachments, overlaps and other matters which would be disclosed by
an accurate current survey.
(6) The Release and Right-of-Entry as hereinafter set forth.
21
(7) The following covenants and agreements of the Purchaser:
"The Grantee(s) herein and hereby covenant(s) and agree(s) for
themselves and their, executors and assigns, that no part of the real
estate herein conveyed shall be used by said grantee(s) heirs,
executors, grantees or assigns, for the purpose of conducting or
carrying on the business of selling, handling or dealing in gasoline,
diesel fuel, kerosene, benzol, naphtha, greases, lubricating oils, or
any fuel used for internal combustion engines, or lubricants in any
form."
"The foregoing restriction shall terminate and be of no further force
and effect upon the expiration of a period of 10 years from the date
hereof."
"The foregoing covenants shall run with the land and be binding on
said Grantee(s) their heirs, executors, grantees and assigns, and
inure to the benefit of the Grantor herein, its successors and
assigns"
It is further agreed between Seller and Purchaser that:
1. Purchaser has deposited with Seller the sum of FIVE THOUSAND AND
NO/100 TO BE INCREASED TO $21,250 AND NO/100 Dollars ($5,000.00 ), as
xxxxxxx money to be applied against the purchase price. On the date
of closing as set forth in Paragraph 13 (the "Closing Date"),
Purchaser agrees to pay to Seller the balance of the purchase price in
the amount of FOUR HUNDRED THREE THOUSAND SEVEN HUNDRED FIFTY AND
NO/100's Dollars ($403,750.00).
2. Seller agrees to furnish to Purchaser within thirty (30) days from the
date hereof a preliminary title report or commitment to insure title
to the Property issued by a responsible title insurance company, or
the equivalent under the Torrens Act in the event that the Property is
registered under the Torrens System, showing title in Seller subject
only to the exceptions above specified and the usual exclusions and
exceptions contained in standard title insurance policies.
3. Purchaser shall, within thirty (30) days after receiving said title
report or commitment, deliver to Seller a written statement of any
objection to the title or a written statement to the effect that the
title is satisfactory. In the event Seller does not receive
Purchaser's written statement of objections within such thirty (30)
day period, it shall be conclusively presumed that Purchaser has
waived all objections to title. In the event there are objections to
the title, Seller shall be allowed thirty (30) days or until the
Closing Date, whichever is longer, to cure the same, and should such
objections be not cured or waived within such period, then Seller
agrees to refund the xxxxxxx money deposit, this agreement shall
thereafter be inoperative and void and neither Seller nor Purchaser
shall have further liability hereunder.
4. Purchaser's obligation to close hereunder shall be subject to
Purchaser, at Purchaser's sole cost and expense, inspecting or causing
an inspection to be made by qualified
22
professionals on Purchaser's behalf of the Property and other assets
described herein, including at Purchaser's option, environmental
inspections or tests for hydrocarbons or for any toxic or hazardous
substances. Purchaser, his agents or employees may enter upon the
Property for the purpose of making such inspections and tests;
provided, however, that Purchaser shall schedule such inspections and
tests with Seller, who shall have the right to have a representative
present at all times during inspections and tests performed by
Purchaser; that Purchaser shall provide to Seller complete copies of
the results of all such inspections and tests; that the results of
such tests shall be confidential and shall not be reproduced or
disclosed by Purchaser to anyone without written consent of Seller;
that Purchaser shall promptly repair any and all damages to the
Property caused by that such activities, and shall restore the
property to the same condition as before the inspections or tests to
the satisfaction of Seller; that such inspections and tests shall not
be conducted in such a manner as to interfere with business operations
conducted on the Property; and that Purchaser shall indemnify and hold
Seller harmless from and against any and all claims arising from or by
reason of Purchaser's entry upon the property. In the event such
inspections disclose conditions unsatisfactory to Purchaser, in
purchaser's sole discretion, and Purchaser so notifies Seller in
writing on or before August 17, 1996 then this Contract shall become
null and void, and Seller shall return the xxxxxxx money deposit to
Purchaser. In the event Seller does not receive Purchaser's written
notice by such date, it shall be conclusively presumed that Purchaser
has satisfied or has waived this contingency.
5. Purchaser expressly acknowledges and agrees (i) that the Property has
been used as a retail gasoline station; (ii) that Purchaser is relying
on the results of his own investigation of the physical and
environmental condition of the Property; (iii) that Purchaser is
relying solely on his own judgment in completing the purchase of the
Property, and (iv) that Purchaser is acquiring the Property 'as is'
with all faults on the date of conveyance, except as set forth in this
Contract. Seller makes no representations or warranties whatsoever
regarding the condition of the real estate or improvements, including
but not limited to the environmental condition of the Property and
warranties of merchantability or fitness for a particular purpose.
6. Seller agrees to remove the underground tanks and product lines now on
the Property and to backfill the tank hole(s) within thirty (30) days
after the Closing Date, subject to the availability of labor, weather
conditions, and other factors beyond Seller's control. Purchaser
hereby grants to Seller the right to enter on the Property, agrees to
cooperate with Seller in the removal of the existing tanks and lines,
and hereby releases Seller from all claims of loss of profits or
interference with Purchaser's business resulting therefrom. Purchaser
hereby expressly assumes all responsibility for grading, compacting
and resurfacing the Property.
7. Purchaser acknowledges receipt of copies of the assessments, reports
and/or correspondence regarding the Property, copies of which are
labeled Exhibit 'B" annexed hereto and made a part hereof. Purchaser
further acknowledges that additional assessments or diagnostic
measures may be required to be performed upon the Property
23
to determine and to design and implement a reasonable and cost
effective plan for remediation of hydrocarbon contamination, and that
such assessments and remediation activities may be disruptive of
Purchaser's use and occupancy of the Property and may continue for an
indefinite period of time. Notwithstanding the foregoing, Purchaser
desires to complete the purchase of the Property and agrees to
cooperate with Seller in the performance of assessment and remediation
activities after the Closing Date.
8. Seller agrees to perform reasonable and cost effective assessment and
remediation measures to address hydrocarbon contamination on the
Property caused by Seller prior to the Closing Date as deemed
necessary or advisable by Seller, in its sole discretion, or as Seller
is required to perform by the ILLINOIS ENVIRONMENTAL PROTECTION AGENCY
(the 'Department'), for a period of time ending upon expiration of the
petroleum restriction set forth in (7) above, or sooner as hereinafter
provided (the 'Ending Date'); provided, however, at such sooner time
as (i) no further remediation activities are required from Seller by
the Department, or (ii) any gasoline, diesel fuel, kerosene, benzol,
naphtha or any fuel used for internal combustion engine is sold,
handled or stored on the Property; or (iii) Purchaser shall materially
default in compliance with any applicable environmental law or
regulation, or shall otherwise default in the performance of any
material covenant of this Contract relating to environmental
contamination, assessment or remediation, including but not limited to
Paragraph 10 hereafter, or (iv) a material spill, leak, or other
release of hydrocarbons or other contamination occurs following the
Closing Date which makes Seller's remedial work significantly more
difficult, or significantly increases the cost or extends the time to
complete the remedial work, then Seller shall thereafter have no
further responsibility to Purchaser, or to Purchaser's heirs, personal
representatives, grantees, successors and assigns, or to anyone
claiming by, through or under Purchaser, for remediation of any
contamination on the Property and all indemnity obligations of Seller
shall end.
9. For the period of time commencing on the Closing Date, and ending on
the Ending Date, Seller agrees to indemnify and hold harmless
Purchaser and Purchaser's heirs, legal representatives and successors
(collectively the 'Indemnified Purchaser Parties"), from and against
all claims, demands, damages, losses, judgments, penalties and
liabilities which arise as a result of any enforcement action
resulting from the presence of hydrocarbon contamination on the
Property caused by Seller's use thereof prior to the Closing Date;
provided, however, that (i) Seller's indemnity shall be limited to
remediation costs actually incurred by or imposed upon Indemnified
Purchaser Parties as a result of such enforcement action, (ii)
Indemnified Purchaser Parties shall promptly notify Seller and provide
to Seller copies of all notices received by Indemnified Purchaser
Parties pertaining to any such enforcement action, and (iii)
Indemnified Purchaser Parties shall incur no costs or expenses for
remediation without the prior written consent of Seller.
10. As of the Closing Date, Purchaser hereby expressly assumes all
responsibility and liability for compliance with all environmental
laws and regulations and for any environmental assessment, inspection,
monitoring and remediation relating to OR resulting
24
from Purchaser's use of the Property. Purchaser shall, at Seller's
request, provide to Seller assurance of compliance with all
environmental laws and regulations, including but not limited to the
results of all future environmental tests, product inventory data,
tank gauging data, tank leak detection data and sampling data; shall
promptly notify Seller of all leaks, spills or releases of
hydrocarbons or other regulated substances which occur or of which
Purchaser becomes aware; and shall, at Seller's request, permit Seller
to perform product tracing and other reasonable tests and procedures
during the period of any assessment or remediation activities by
Seller, it being the intent of the parties that Purchaser shall be
responsible and liable for any and all spills, leaks and releases
which occur subsequent to the Closing Date. Commencing on the Closing
Date, Purchaser agrees, collectively, and jointly and severally, for
themselves and on behalf of their agents, employees, heirs, personal
representatives, grantees, successors and assigns (collectively
'Purchaser Indemnifying Parties"), to indemnify and hold harmless
Seller, its parent, affiliates, and each of their respective agents,
employees, officers, directors, shareholders, successors and assigns
(collectively the 'Indemnified Seller Parties') from and against all
claims, demands, damages, losses, liabilities, judgments, penalties,
suits, actions, costs and expenses (including consultants' and
attorneys' fees) arising from the presence of hydrocarbon or other
contamination occurring after the Closing Date; provided, however,
that from and after the Ending Date, Purchaser Indemnifying Parties
shall indemnify and hold harmless the Indemnified Seller Parties from
and against all claims, demands, damages, losses, judgments,
penalties, suits, actions, costs and expenses (including consultants'
and attorneys' fees) arising from all contamination of the Property.
11. Seller reserves the right, for itself, its agents, employees,
successors and assigns, to enter upon the Property, both before and
after the Closing Date, for the purpose of (I) engaging in
environmental assessment, inspection, monitoring and remediation,
including but not limited to the installation of such facilities and
the conduct of such activities as deemed necessary or advisable by
Seller, in its sole discretion, or as are required by governmental
authorities having jurisdiction, for a period of time required to
comply with any applicable environmental laws or regulations affecting
the Property, and (ii) removing from the Property any property and
equipment not sold hereunder. Seller shall not be liable for any
damages to Purchaser, direct or indirect, resulting from contamination
of the Property existing on the Closing Date or for any interruption
or interference with any business or activities being conducted on the
Property, or loss of opportunity, or any other loss, damage, cost or
expense of any kind whatsoever, caused by or resulting from the
condition of the Property or the performance of any activities
authorized herein; provided, however, Seller shall use reasonable
efforts to minimize such interruption or interference. Purchaser
agrees to cooperate fully with Seller in the performance of the
activities authorized herein so as to minimize the time and expense to
Seller, including the granting of access to on-site utilities (e.g.,
electricity, sewer, and water), if required for such activities, and
further agrees that, during the period of any assessment or
remediation activities by Seller, (i) no construction or improvements
shall be made upon the Property which would impede or restrict access
to monitoring xxxxx, remediation or monitoring equipment, or to the
hydrocarbon plume, or which would modify or affect the size, location
or nature of the plume without the prior written consent of Seller,
which
25
consent shall not be unreasonably withheld; and (ii) no gasoline,
diesel fuel or other motor fuels shall be sold, handled or stored on
the Property.
12. As further consideration without which Seller would not have entered
into this Contract, Purchaser agrees to execute and deliver to Seller
at closing the following documents: (i) the Xxxx of Sale in the form
set forth in Exhibit "A" annexed hereto and made a part hereof, and
Oil the Release and Right-of-Entry in the form set forth in Exhibit
'C" attached hereto and made a part hereof, each of said documents to
be effective as of the Closing Date.
13. The Closing Date shall be fifteen (15) days after all conditions have
been satisfied or waived, but not later than August 27, 1996. Closing
shall be effected through escrow with the title insurance company
acting as escrow agent for both parties. Seller shall deliver to the
escrow agent its Special Warranty Deed, any other documents required
hereunder, and all customary documents required by the title company
not inconsistent with this Contract. Purchaser shall deliver to the
escrow agent the balance, of the purchase price in cash or certified
funds, the Release and Right-of-Entry, any other documents required
hereunder, and all customary documents required by the title company
not inconsistent with this Contract. The escrow agent shall record
the Special Warranty Deed and the Release and Right-of-Entry; shall
deliver to Seller its Settlement Statement, a cashier's check for the
purchase price less Seller's expenses, and the recorded Release and
Right-of-Entry; and shall deliver to Purchaser its Settlement
Statement, the recorded Special Warranty Deed and the owner's title
insurance policy. Seller shall pay the fees for recording the Release
and Right-of-Entry and the title insurance premium. Purchaser shall
pay the fees for recording the Special Warranty Deed. Seller and
Purchaser each agree to pay 50% of the escrow fee.
14. Rents and other current charges, if any, shall be adjusted pro rata as
of date of delivery of deed. General taxes for the year of closing
shall be prorated from January 1st to date of delivery of deed. If
the amount of such taxes is not then ascertainable, prorating shall be
on the basis of the amount of the most recent ascertainable taxes.
Purchaser agrees to pay any and all Federal, State, and local real
estate transfer taxes and documentary stamp taxes applicable to this
transaction, and a present or future retailer's occupation tax, sales,
use, excise or similar tax applicable to the sale of goods, equipment
or other personal property covered by this Contract.
15. If, after the date of execution of this Contract and prior to closing,
a casualty loss occurs that results in damage or destruction such that
greater than five (5) percent of the value of improvements and
equipment are damaged or destroyed, then either party shall have the
right to terminate this Contract by notice to the other, in which case
this Contract shall be deemed null and void, the xxxxxxx money shall
be returned to Purchaser, and neither Seller nor Purchaser shall have
any further liability under this Contract. Seller shall have no duty
whatsoever to restore any improvements or equipment on the Property.
26
16. Seller and Purchaser each represent and warrant to the other that no
brokers or finders have been involved in this transaction, except
HIFFMAN XXXXXXX ASSOCIATES & XXXXXXXX XXXXX XXXX & ("Realtor"), and
that no commissions or fees are due to any broker or to any other
party with regard to this transaction, except as set forth in the
Commission Agreement labeled Exhibit "D" annexed hereto and made a
part hereof. Seller and Purchaser each agree to indemnify, defend and
hold the other harmless from any claims, loss, damage, costs and
expense arising from any breach hereof by the indemnifying party.
17. (a) In the event of default hereunder by Purchaser prior to closing,
Seller's remedies shall include, in addition to specific performance
and other remedies available at law or in equity, terminating this
Contract upon written notice to Purchaser, in which event Seller may
retain the xxxxxxx money at its option as liquidated damages, and
Seller or Purchaser shall thereafter have no further claim against or
liability to the other and this Contract shall be inoperative and
void.
(b) In the event of default hereunder by Seller prior to closing,
Purchaser's remedies shall include, in addition to specific
performance and other remedies available at law or in equity,
terminating this Contract upon written notice to Seller, in which
event Seller expressly agrees to refund to Purchaser the xxxxxxx money
deposit, and Seller or Purchaser shall thereafter have no further
claim or liability against the other and this Contract shall be
inoperative and void.
18. All notices required or sent hereunder shall be in writing and
delivered in person, by messenger or other express delivery service,
or by U.S. Mail Certified, Return Receipt Requested, to the address of
the other party as set forth in the first paragraph of this Contract,
or to such other address as the parties may from time to time
designate. A copy of any notice to Seller shall also be sent to Amoco
Oil Company, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: West Zone Real Estate. Each such notice shall be deemed
served and effective on the date of delivery or refusal, if delivered
personally, on the date of the delivery receipt, if delivered by
messenger or express service, or the date of mailing shown on the
certified mail receipt, if delivered by certified mail.
19. Purchaser acknowledges that Seller has made no representations or
warranties to Purchaser regarding (i) the economic viability,
profitability or business potential of the Property; (ii) the
condition or suitability of any assets sold to Purchaser for operating
Purchaser's business or for any other use; or (iii) the environmental
condition or status of the Property.
20. This Contract and Exhibits "A' through 'D" annexed hereto contain the
entire understanding and agreement between the parties hereto relative
to the subject matter hereof. No representations or statements, other
than those expressly set forth herein, were relied upon by the parties
in entering into this Contract. No modification, waiver of, addition
to, or deletion from the terms of this Contract shall be effective
unless reduced to writing and signed by Seller and Purchaser, each of
whom expressly waives, releases and
27
forever forswears any right under Illinois law which permits a
contract, by its terms amendable only in writing, to be orally
amended.
21. Any covenant or provision hereof which by its nature requires
observance or performance after the Closing Date shall survive
delivery of the deed and shall continue in full force and effect.
22. The provisions hereof shall inure to the benefit of and bind the
parties hereto, their respective heirs, personal representatives,
successors and assigns. Purchaser shall not assign his rights under
this Contract without the prior written approval of Seller.
23. It is expressly understood and agreed that this Contract shall not be
binding on Seller unless and until it is executed on behalf of Seller
by an authorized representative and a signed copy thereof is delivered
to Purchaser.
In Witness Whereof, the parties hereto have duly signed these presents the day
and year first above written.
AMOCO OIL COMPANY, Seller
By: Signed
-------------------------------------
Xxxxxx Xxxxxxx, Real Estate Manager
WOLFHOYA INVESTMENTS, INC.
By: Signed
-------------------------------------
Xxxxxx X. Xxxx, Vice President
28
SS #15093
000 X. Xxxxx & Xxxxxxx
Xxxxxxxxxx, XX
ATTACHMENT #I
Property Description:
Lots 7 and 8 in Block 2 in "Village of Barrington", in the East
one-half of the Northwest quarter of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 0, Xxxx of the Third Principal Meridian, in Xxxx County,
Illinois.
29
SS #15093
000 X. Xxxxx & Xxxxxxx
Xxxxxxxxxx, XX
ADDENDUM TO
REAL ESTATE CONTRACT
THIS ADDENDUM,attached to and made a part of that certain Real Estate Contract
dated the 25th day of March, 1996,is made and given as further consideration
for Seller's agreement to sell and Purchaser's agreement to buy the Property.
WITNESSETH: It is further agreed as follows:
1.SURVEY ALLOWANCE. Seller shall give Purchaser a credit at closing up to the
amount of $2,000 upon presentation of an invoice for a current survey of the
property. Purchaser shall be totally responsible for obtaining the survey.
2. CONTINGENCIES.
APPROVALS. This sales agreement is wholly subject to Purchaser
securing State, FDIC and Federal Reserve Banking approvals for a
financial institution on the property within 145 days hereof. In the
event Purchaser is unable to secure such approvals within said 145
days, then the xxxxxxx money deposit made by Purchaser shall be
refimded by Seller and this agreement shall be declared null and void.
SPECIAL ASSESSMENTS. This sales ageement is contingent upon
Purchaser's verification that there are no special assessments against
the property and that none are planned. In the event Purchaser is
unable to satisfy this contingency then this agreement shall become
null and void at Purchaser's election and any and all xxxxxxx money
deposited by Purchaser shall be refunded by Seller.
IN WITNESS WHEREOF, the parties hereto have duly signed these presents all this
25th day of 1996.
AMOCO OIL COMPANY, Seller
By: Signed
--------------------------------------
Xxxxxx Xxxxxxx, Real Estate Manager
WOLFHOYA INVESTMENTS, INC.
By: Signed
--------------------------------------
Xxxxxx X. Xxxx, Vice President
